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Judicial Appointments and Courts

Why courts matter?

Courts play a vitally important role in the lives of every American, especially those who are lesbian, gay, bisexual, transgender and queer.  They interpret state and federal constitutions and continually refine and perfect what equality, liberty, and due process mean.  This development of constitutional principles and values plays a critical role in our progress towards achieving full, equal rights under the law for all Americans.

U.S. Supreme Court

In the past two decades, the U.S. Supreme Court has established important legal precedents protecting the LGBTQ community. These cases include:

  • Romer v. Evans, in which the Court held that a state could not make it more difficult for lesbian, gay and bisexual people to secure protections through the legislative process;
  • Lawrence v. Texas, in which the Court that a state could not criminalize our intimate relationships;
  • Windsor v. United States, in which the Court held that section 3 of the Defense of Marriage Act was unconstitutional, paving the way for same-sex couples to have their relationships recognized by the federal government; and
  • Obergefell v. Hodges, in which the Court held that marriage equality bans were unconstitutional

These cases signal that the federal courts are increasingly willing to recognize the constitutional rights of lesbian, gay, bisexual, transgender and queer Americans. However, as opponents of LGBTQ rights seek to redefine religious freedom in order to discriminate against LGBTQ people, it is essential that the President continues to appoint fair-minded justices and judges to our courts. 

Appointing Fair-Minded Justices and Judges

A president’s power to nominate federal judges has far-reaching consequences.  Judges have the power to influence American policy and constitutional interpretation for decades.  Justice Antonin Scalia, for example, was appointed to the U.S. Supreme Court by President Reagan in 1986—the same year the Court upheld the right of states to criminalize same-sex sexual activity in Bowers v. Hardwick.  Seventeen years later in 2003, Justice Scalia wrote the scathing dissent in Lawrence v. Texas, which reversed Bowers.  Members of the federal judiciary serve life terms, giving each new justice or judge the power to shape decisions that will be felt by generations to come.

The President and the Senate, which confirms judicial nominees, should ensure that only fair-minded individuals, committed to impartial judgments and policies based upon fact rather than ideology, serve our nation in these key posts.  Only nominees with exceptional intellectual ability, distinguished experience in law, and a temperament that would enable them to make decisions fairly and with an open mind should be confirmed for lifetime appointments to the bench.   These attributes are vital to ensuring that LGBTQ legal protections survive challenges by right-wing litigation groups, protecting against judicially imposed limits on future civil rights laws, and guaranteeing that courts recognize LGBTQ people’s fundamental rights and basic equality.

HRC believes that an assessment of temperament worthy of lifetime appointments should include the following:

  • Demonstrated commitment to full equality under law for lesbian, gay, bisexual, transgender and queer Americans; individuals living with HIV and AIDS; women; people with disabilities; and racial, ethnic and religious minorities;
  • Demonstrated commitment to the constitutional right to privacy and individual liberty, including the right of two consenting adults to enter into consensual intimate relationships;
  • Respect for the constitutional authority of Congress to promote equality and civil rights and provide statutory remedies for discrimination and violence;
  • Sophisticated understanding of and commitment to the separation of church and state and the protection of those citizens with minority religious views;
  • Respect for state legislatures' attempts to address discrimination and violence based on sexual orientation, gender identity, disability, race, color, national origin, religion and other factors through carefully crafted legislation that meets the requirements of the Constitution.

HRC’s Amicus Curiae Program

HRC supports litigation affecting the LGBTQ community by filing amicus curiae (“friend of the court”) briefs in cases in both federal and state court brought by our partner organizations.  Amicus briefs are filed with courts by individuals or organizations who are not a party to the case, but who have a shared interest in, and will be impacted by, the outcome.  HRC has joined or filed separate amicus briefs in cases involving marriage equality, the Defense of Marriage Act, parenting issues, education, healthcare, and many other issues.